Mckinnon v. Royal & Sun Alliance Insurance Company of Canada, 2022 CanLII 70508

Citation: Mckinnon v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONLAT 20-008995/AABS

Licence Appeal Tribunal File Number: 20-008995/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Eugene Mckinnon

Applicant

and

Royal & Sun Alliance Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Jeton Memeti, Paralegal

For the Respondent: Katherine Kolnhofer, Counsel

HEARD: By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on September 15, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES

2On consent, the following issues are to be decided by the Tribunal:

i. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit an in the Minor Injury Guideline?

ii. Is the applicant entitled to $2,400.00 for an orthopedic assessment, recommended by All Health Medical in a treatment plan dated May 12, 2020?

iii. Is the applicant entitled to $2,400.00 for physiotherapy and chiropractic services recommended by Essential Physiotherapy and Rehab in a treatment plan (OCF-18) dated September 2, 2020?

iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

LAW

3Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.

4In Scarlett v. Belair Insurance², the Divisional Court reviewed the minor injury provisions in the Schedule, finding that they were a limit on an insurer's liability, not an exclusion from coverage, and that the onus of establishing entitlement beyond the cap rests with the claimant. Applying Scarlett, the applicant must establish their entitlement to coverage beyond the $3,500 cap for minor injuries

5Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury, the total cost of their medical and rehabilitation benefits payable shall not exceed $3,500.00.

6Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an applicant provides compelling medical evidence that they have a pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the Minor Injury Guideline ('MIG') funding limit.

7Section 38(8) of the Schedule states that within 10 business days of an insurer receiving a treatment and assessment plan, it shall give the insured person notice that identifies the goods/services/assessment/examinations described in the treatment and assessment plan that it will pay for or refuses to pay for and provide the medical reasons and all other reasons why said goods/services/assessment/examinations or said costs are not reasonable and necessary.

8Section 38(11) of the Schedule states that if an insurer fails to give a notice in accordance with section 38(8) of the Schedule, the insurer is prohibited from taking the position that the insured person has an impairment where the MIG applies. The insurer shall pay for all goods/services/assessment/examinations described in the plan related to the period starting on the 11th business day after the day the insurer received the plan and ending on the day the insurer provides a notice that complies with section 38(8) of the Schedule.

9Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

10Section 10 of R.R.O. 1990, Reg. 664: Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in additional to awarding the benefits and interest which the insured person is entitled to, may award a lump sum of up to fifty percent of the amount to which the person was entitled to at the time of the award, with interest, on all amounts owing to the insured.

ANALYSIS

A) APPLICABILITY OF THE MINOR INJURY GUIDELINE

11The applicant submitted that his physical injuries, pre-existing conditions, chronic pain and psychological injury as a result of the accident remove him from the MIG.

12The onus is on the applicant to show that his injuries fall outside of the MIG³.

Did the applicant sustain predominantly minor physical injuries?

13The applicant submitted that he suffered from a partial supraspinatus tear and a C6 radiculopathy as a result of the accident, and that neither are a minor injury.

14Strains and sprains normally fit within the MIG as noted by the definition of "minor injury" within section 3 of the Schedule.

15After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant's tear and C6 radiculopathy are minor injuries for the following reasons.

Submissions and evidence

16The applicant submitted that his physical injury warrants removal from the MIG. He submitted that after the accident, he visited him family physician, Dr. Eddy Jang and complained of injuries to his neck, left shoulder and back⁴. The applicant relied on Dr. Jang's clinical notes and records.

17The applicant returned soon after with complaints of left shoulder pain⁵. Dr. Jang noted⁶ the applicant's left shoulder pain and opined this was as a result of a partial-thickness supraspinatus tear⁷.

18The applicant underwent a cervical spine radiograph⁸ imaging, which found the applicant had: "mild-to-moderate C5-C6 and C6-C7 degenerative disc disease ('DDD') and a foraminal narrowing"⁹

19The applicant provided further clinical notes and records demonstrating that he has been complaining of and seeking treatment for his left shoulder injury and related pain since the accident¹⁰.

20As a result, the applicant was referred to Dr. Alireza Kachoocie, physical medicine and rehabilitation specialist, by Dr. Jang¹¹ in relation to pain in the applicant's left hip and left shoulder rotator cuff.

21Dr. Kachoocie communicated to Dr. Jang¹² that Dr. Kachoocie had performed an electromyography test ('EMG') in the applicant's upper left extremity. Dr. Kachoocie suggested that the applicant's EMG showed indications of mild, chronic denervation of his C6 radiculopathy. Dr. Kachoocie stated he performed a physical assessment of the applicant, and discussed diagnoses of whiplash with C6 radiculopathy, left rotator cuff tendonitis, cervicogenic headaches, temporomandibular joint, mechanical back pain in the facet joint and chronic pain syndrome.

22Dr. Kachoocie then ordered magnetic resonance imaging ('MRI') of the applicant's cervical spine¹³, where the doctor found degenerative changes of the applicant's cervical spine at the C5-6 and C6-7, and found a central syrinx of "up to" 0.2 cm. Dr. Kachoocie qualified these findings as to be of "questionable clinical significance".

23Dr. Kachoocie ordered another MRI of the applicant's spine, to compare it to the applicant's MRI of February 2020¹⁴. Dr. Kachoocie found that the applicant did not have a high-grade partial or communicating rotator cuff tear but did have possible low-grade interstitial tearing¹⁵. The doctor again opined that the applicant experienced degenerative changes to his cervical spine, namely the C5-C6 and C6-C7 with similar comments regarding the central syrinx.

24The respondent took issue with Dr. Kachoocie's findings; the respondent submitted that in order for the applicant to support his allegation of suffering from cervical radiculopathy as a result of the accident, he should have provided "sufficient and clear documentary evidence", as seen in 17-005000 v RBC Insurance Company¹⁶. In this decision, Member Lake, as she was then, found that in matters involving a diagnosis of cervical radiculopathy, "sufficient and clear" evidence consisted of a nerve conduction test, Spurling's test, or imaging that demonstrates cord or nerve root compression.

25The respondent disagreed that the applicant's physical injuries warranted removal from the MIG. The respondent noted that on the applicant's first visit post-accident to Dr. Jang, Dr. Jang opined that the applicant's injuries were strains and sprains¹⁷.

26The respondent also noted that the applicant waited 10 days after his accident to visit Dr. Jang, and that the applicant returned to his work in construction 5 days post accident¹⁸.

27The respondent also relied on its insurance examination completed by Dr. Mile Stefanac, physician¹⁹. Dr. Stefanac diagnosed the applicant with a left shoulder sprain/strain and a left gluteal muscle strain²⁰. In terms of the applicant's impairments, Dr. Stefanac opined that the applicant's physical impairments qualified as a MIG injury²¹.

28Dr. Stefanac also reviewed the applicant's EMG and MRIs in an addendum report²² and found that the changes to the applicant's spine were as a result of denervation, meaning the C6 radiculopathy was likely incidental and not as a result of the accident.

29The applicant submitted that little to no weight should be placed on Dr. Stefanac's report, as he alleged that Dr. Stefanac failed to address the applicant's partial tear to his supraspinatus tendon. The applicant also submitted that Dr. Stefanac's report mentioned on page one that the doctor was only addressing a treatment plan but then includes a MIG determination on page five. Dr. Stefanac also spent only 40 minutes assessing the applicant, and said assessment was performed four months after the request for treatment. Finally, the applicant took issue with the fact that Dr. Stefanac agreed with the questions being asked for the report and failed to provide an explanation for his logic.

30The respondent submitted that the applicant's injuries each fit the definition of a MIG injury. The respondent argued that the applicant's partial tear to his supraspinatus tendon fits within the definition of a minor injury as it was a sprain, as defined by section 3 of the Schedule.

31The respondent directed the Tribunal's attention to S.K. and Aviva Insurance Canada²³. In this decision, the Tribunal found that the applicant's partial tear of the left supraspinatus tendon was found to be a minor injury.

Analysis

32After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant's partial supraspinatus tear to be a minor injury.

33Though the applicant was able to demonstrate that he did suffer this injury, and it was causing him long-term pain, I was more persuaded by the respondent's position that this injury has previously found to be a MIG injury, as seen in S.K. and Aviva Insurance Canada²⁴.

34Furthermore, the Schedule states under section 3(1), definitions, that a sprain is defined by an injury to one or more tendons, including a partial but not a complete tear. In this case, the applicant has not shown that he suffered a complete tear as a result of the accident, and therefore, this injury is minor.

35I also disagreed with the applicant's position, in terms of Dr. Stefanac's evidence. Though the doctor may not have addressed the applicant's partial tear, based on the Schedule, it is clear that that the applicant's partial tear is a minor injury.

36As the applicant has not shown that his tear is complete, this injury is found to be within the MIG.

37In terms of the applicant's C6 radiculopathy, I was less persuaded by the submission of the applicant for several reasons. Firstly, I was not provided with Dr. Kachoocie's EMG results, nor the complete basis of his initial diagnosis of mild, chronic denervation of the applicant's C6 radiculopathy.

38When contemplating this evidence in comparison to that of Dr. Stefanac, who provided a comprehensive basis for his findings, I was less persuaded by that of Dr. Kachoocie. Furthermore, the applicant failed to provide persuasive arguments as to why Dr. Kachoocie's evidence should be preferred or fully address the respondent's argument regarding Dr. Stefanac's findings.

39Instead, I was left to consider that two doctors, with the same medical imagery and test results, came to two very different conclusions. I was persuaded by the Tribunal's reasoning in 17-005000 v RBC Insurance Company²⁵, regarding the need for "sufficient and clear documentary evidence". As the applicant did not fully address the issue of this evidentiary benchmark, I find that the applicant had failed, based on a balance of probabilities, to show that his physical injuries from his accident required removal from the MIG.

Does the applicant have any pre-existing conditions?

40In order for an applicant to be removed from the MIG on the basis of section 18(2) of the Schedule, the applicant must provide compelling evidence that there was a pre-existing medical condition that was documented by a health practitioner before the accident and the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit on treatment costs under the MIG²⁶.

41The standard for excluding an impairment on the basis of pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person's impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

42The applicant did not make arguments related to this issue even though he relied on this route to be removed from the MIG; however, the respondent chose to address this in its submissions. The respondent submitted that as the applicant has not provided compelling evidence of suffering from a pre-existing condition that prevents him from reaching maximal medical recovery if confined to the MIG, he cannot be removed from the MIG on this basis.

Analysis

43After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not shown that he has any pre-existing conditions that prevent him from reaching maximum medical recovery if limited by the financial constraints of the MIG.

44As noted by the respondent, the applicant did not lead any direct evidence to this effect, and therefore, has not met his evidentiary burden.

Does the applicant suffer from chronic pain syndrome?

45The applicant submits that he suffers from chronic pain syndrome. The applicant relied on the clinical notes and records of Dr. Jang, as described above, where the applicant complained of pain in his spine and shoulder.

46The applicant relies on the report Dr. Darrell J. Ogilvie-Harris, orthopaedic surgeon.²⁷ Dr. Ogilvie-Harris stated that he assessed the applicant by telephone due to the Covid-19 pandemic²⁸. Dr. Ogilvie-Harris found that as a result of the accident, the applicant suffered soft-tissue injuries in relation to his neck and back pain. Dr. Ogilvie-Harris also opined that the applicant had developed the features of chronic pain syndrome with central sensitization and concerns about the applicant's left shoulder injury.

47The applicant also relied on the clinical notes and record of Dr. Kachoocie. As noted above, Dr. Kachoocie diagnosed the applicant with chronic pain syndrome²⁹.

48The applicant submitted that he had a bona fide need to be removed from the MIG, as his chronic pain syndrome necessitated treatment beyond its limits, and he continued to experience on-going and severe pain.

49In terms of the respondent's evidence, the applicant also argued that Dr. Stefanac failed to comment on the applicant's chronic pain diagnosis in his findings³⁰, as the doctor felt this is beyond his scope of practice. The applicant argued that as a general practitioner, Dr. Stefanac could have and should have commented on the applicant's chronic pain syndrome.

50The respondent submitted that the applicant has failed to establish that he suffers from chronic pain requiring removal from the MIG as a result of the accident.

51The respondent took issue with Dr. Ogilvie-Harris's findings. The respondent submitted that Dr. Ogilvie-Harris never actually diagnosed the applicant with chronic pain or chronic pain syndrome. The respondent submitted that Dr. Ogilvie-Harris diagnosed the applicant with what he describes as "features" of a chronic pain syndrome with central sensitization.

52The respondent argued that Dr. Ogilvie-Harris failed to identify how he determined that the applicant was diagnosed with chronic pain what clinical testing was used to support this finding or that the applicant was physically assessed by the doctor. The respondent also argued that little to no weight should be placed on the doctor's finding, as the applicant was assessed over the phone and not in person³¹.

53The respondent also argued that as Dr. Ogilvie-Harris failed to analyze the severity of the applicant's pain, his restrictions on his activities of daily living ('ADL's), the pain's severity, and duration of his symptoms, the doctor's finding should be found to be not persuasive.

54The respondent also noted that Dr. Ogilvie-Harris's specialization in orthopaedic surgery did not make him qualified to assess, diagnose or treat chronic pain³². The respondent also submitted that as Dr. Stefanac was not qualified to comment on chronic pain, he declined to do so, and that Dr. Ogilvie-Harris ought to have done the same.

55The respondent also took issue with Dr. Kachoocie's chronic pain diagnosis, as it submitted that the doctor failed to identify the basis of the diagnosis or what methodology was used for such. Based on this lack of information, the respondent submitted that Dr. Kachoocie's finding should be given little weight.

56Furthermore, the respondent argued that as Dr. Kachoocie failed to analyze the severity of the applicant's pain, his restrictions on his ADLs, the pain's severity, and duration of his symptoms, the doctor's finding should be found to be not persuasive.

57Finally, the respondent noted that as Dr. Kachoocie appears to have diagnosed the applicant with chronic pain syndrome, it submitted that this should be considered preliminary, as the applicant was recommended to obtain an MRI by the doctor and failed to do so. The respondent submitted that as the applicant failed to do so, little weight should be put on the doctor's findings.

58The respondent submitted that the Tribunal must look at the functional impairment of the applicant as a result of the accident. Instead, the respondent submitted that the applicant's pain is as a result of a clinically associated sequalae of a minor injury.

59The respondent relied on the decision of A. A. vs. Technology Insurance Company Inc³³, where the Tribunal found four criteria it could apply when assessing chronic pain, which are:

i. Whether the applicant suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain;

ii. Whether the applicant's pain has persisted well beyond the normal healing times for the injuries sustained;

iii. Whether the pain is not a clinically associated sequela to minor injuries;

iv. Whether the applicant's pain has caused functional impairment and disability. That is, whether it significantly disrupts or disables pre-accident activities of daily living.

60The respondent submitted that the applicant does not meet any of these criteria, as it submitted:

i. The applicant does not suffer from severe and constant pain and reported what the respondent describes as "subjective pain" at the end of his workday³⁴ rather than constant, severe pain.

ii. The applicant has not shown that his pain has lasted well beyond the normal healing times.

The respondent argued that the applicant failed to provide clinical notes and records from his family doctor beyond November 2020 or his decoded Ontario Health Insurance Plan ('OHIP') records, despite multiple requests for such.

The respondent argued that as the applicant has not complied with the Tribunal's production order³⁵, a negative inference should be made.

iii. That Dr. Stefanac found the applicant's pain to be clinically associated sequalae to his MIG injuries.

iv. That the applicant has not proven he suffers from a functional impairment and disability as a result of his pain.

The respondent argued that the applicant has returned to physically intense, full-time employment. While the applicant argued that he was working modified and light duties, the respondent submitted that the applicant has failed to show this with evidence.

Furthermore, the respondent argued that the applicant is now driving³⁶, and not provided evidence beyond his own self-reporting that he has retreated from the social and recreational milieu. The respondent also submitted that the applicant has failed to show the impact of his disability, as the applicant told Dr. Kelly McCutcheon, psychologist that he's able to perform some of his ADLs³⁷.

61The applicant disagreed with this and argued:

i. That the fact that the applicant was forced to return to work due to financial need should not negate his severe and constant complaints of injuries and impairments, as reported in his OCF-3³⁸.

Instead, the applicant argued that based on his employment record, his pain impairment has prevented him from receiving a salary increase since the accident³⁹.

ii. In terms of the applicant's delayed healing times, he relied on his prescription summary⁴⁰, which showed his use of Gabapentin and Naproxen to support that he is experiencing prolonged pain.

iii. In terms of the applicant's pain being clinically associated sequalae, the applicant argued he has been diagnosed with chronic pain by Dr. Jang, Dr. Kachoocie and Dr. Ogilvie-Harris.

iv. The applicant argued that he has shown, as a whole, his chronic pain has a functional impairment and disability. He relied on Dr. Kachoocie's clinical notes and records demonstrating the applicant was diagnosed with chronic pain syndrome⁴¹, and the report of Dr. Ogilvie-Harris⁴².

Dr. Ogilvie-Harris noted that the applicant stated he had difficulty carrying out his employment and was on light duties and found himself only able to work six hours, then found himself in pain for two, and was leaving work exhausted.

Dr. Ogilvie-Harris also noted that the applicant reported he was not long able to do heavy cleaning and maintenance activities and that his "legs given out because of the hip pain".

The doctor also noted that the applicant used to socialize with family and friends but reduced his visits because of difficulties with sitting and standing. The applicant also reported hiking but no longer doing so after the accident.

The applicant also reported that his relationship with his girlfriend was affected as the applicant noted getting into arguments.

Analysis

62After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant's chronic pain does not warrant removal from the MIG for the following reasons:

63I agree that the applicant is suffering from on-going pain, as demonstrated by his self-reporting and the clinical notes and records of Dr. Jang. However, I do not agree that this chronic pain has caused a functional impairment or disability that requires removal from the MIG.

64I agreed with the respondent's concerns about Dr. Ogilvie-Harris' report; namely that the doctor did not actually diagnose the applicant with chronic pain syndrome. Rather, as noted above, the doctor noted that the applicant had features of chronic pain syndrome. Therefore, this did not persuade me that the applicant suffered from chronic pain syndrome.

65I was also less persuaded by the evidence of Dr. Kachoocie, as his clinical notes and records provided little help in determining the basis of the applicant's diagnosis of chronic pain syndrome, nor if the subsequent MRI of the applicant was ever performed, and if so, whether it changed the doctor's findings.

66I also found the case law cited by the applicant, 16-004622 v Aviva Insurance Canada, to be less relevant, as in that matter, the applicant had already been removed from the MIG, which is not the case before me.

67As the Tribunal has previously accepted the guidelines of A.A. vs. Technology Insurance Company Inc⁴³, and I have used them to determine if the applicant's chronic pain requires removal from the MIG:

i. In terms of the applicant's severe and constant pain, meaning more than simple, on-going or recurrent, intermittent pain, I find that the applicant has not met his evidentiary onus.

Though the applicant was able to demonstrate his subjective complaints of body pain, he did not provide medical that negated the fact that the applicant reported experiencing intermittent pain at work and not severe and constant pain.

ii. I also agreed with the respondent's submissions regarding the applicant failing to demonstrate that his chronic pain has lasted well beyond normal healing times, as the applicant failed to provide medical evidence beyond November 2020 nor a decoded OHIP summary.

However, as the case conference report and order of December 31, 2020 did not specifically list a production exchange list, I did not draw a negative inference as requested by the respondent.

Instead, I was left with the evidence the applicant chose to rely on, which I found did not provide contemporaneous evidence to support the position that his chronic pain has lasted beyond normal healing times. Therefore, I find he has not fulfilled this criterion.

iii. I also find that the applicant has failed to show, based on a balance of probabilities, that his chronic pain is not a clinically associated sequala to minor injuries.

I was less persuaded by the evidence of Dr. Jang and Dr. Ogilvie-Harris, as neither doctor specifically addressed the issue of applicant's pain being a sequela to his minor injuries. Also, as discussed above, Dr. Ogilvie-Harris never actually diagnosed the applicant with chronic pain syndrome, and therefore, this evidence was less persuasive.

In terms of Dr. Kachoocie's diagnosis of chronic pain syndrome, as discussed above, I found this diagnosis to be less than convincing, as the doctor failed to provide how he came to this conclusion. Dr. Kachoocie also did not address whether the applicant's pain was a sequela from a MIG injury.

On the other hand, the respondent relied on the evidence of Dr. Stefanac, which did specifically address this point and found the applicant's pain to be clinically associated sequalae to his MIG injuries

iv. I also agree that the applicant has not shown, based on a balance of probabilities, that his chronic pain has caused him to suffer from a functional impairment and disability as a result of his pain.

The applicant raised several points in his submissions regarding the impact of chronic pain on his functional impairment, causing him disability. However, submissions are not evidence, and the applicant did not present to this Tribunal any direct evidence.

One example of this frailty is the applicant stating that Dr. Ogilvie-Harris diagnosed him with chronic pain syndrome, which was not supported in the doctor's report. Though the doctor did note the applicant's self-reported issues with his ADLs, this finding was not supported by direct evidence from the applicant via an affidavit or testimony, nor his contemporaneous medical professionals.

Dr. Ogilvie-Harris also noted that the applicant had issues with socializing and hiking, but again, I echo my previous comments.

Finally, the applicant also claimed that his impairments and disability were impacting his relationship with his girlfriend, but again, I was not presented with any evidence to support this. Therefore, I found this argument unpersuasive.

I also considered the respondent's arguments regarding the applicant's return to his physically demanding employment. I put little weight on this, as I agreed that the fact that the applicant was forced to return to work for financial reasons bore little impact in determining his level of impairment and disability as a result of his pain.

Therefore, after considering the totality of the evidence before me in relation to the applicant's impairment and disability, I find, based on a balance of probabilities, that he has not shown his pain caused functional impairment or disability.

68Therefore, I find that the applicant has not shown, based on a balance of probabilities, that his chronic pain requires removal from the MIG.

Does the applicant have a psychological impairment(s)?

69The applicant claims that he sustained a psychological injury as a result of the accident that place his claims outside of the MIG.

70Psychological injuries, if established, may fall outside the MIG, because the MIG governs only "minor injuries", and the prescribed definition does not include psychological impairments.

71The applicant submitted that as a result of the accident, he has suffered from the psychological impairments of stress and anxiety. To support this position, the applicant relied on the OCF-18 from All Health Medical Centre, authored by Dr. Ogilvie-Harris, recommending an orthopaedic assessment⁴⁴. The OCF-18 noted that psychological stress and anxiety were barrier to recovery.

72The applicant relied on a second OCF-18, this time recommending physical therapy for the applicant⁴⁵. This OCF-18, authored by Dr. Yee noted that the applicant complained of anxiety, stress and other psychological symptoms.

73The respondent submitted that the applicant has failed to show, based on a balance of probabilities, that he suffers a psychological impairment as a result of the accident.

74The respondent relied on its section 44 report⁴⁶ of Dr. McCutcheon, psychologist, which found that the applicant's psychological symptoms were subclinical, did not warrant treatment and that the applicant had no psychological diagnosis or impairment.

75The applicant's psychometric testing⁴⁷ with Dr. McCutcheon indicated that the applicant had mild symptoms, which the applicant confirmed during his assessment.

76The respondent argued that the applicant's scores on his psychometrics, which the respondent describes as "mild" are not compelling enough in themselves to remove the applicant from the MIG. Instead, the respondent submitted that Dr. McCutcheon's report as a whole must be taken into account, which includes the applicant's subjective evidence and the psychometric evidence.

77Furthermore, the respondent submitted that the applicant has not provided evidence that competes with the evidence provided by Dr. McCutcheon, demonstrating the applicant's psychological impairment. The respondent stated that as the applicant has not shown that he has sought or participated in any form of psychological or psychologically related treatment, the applicant has not shown that he suffers from a psychological impairment requiring removal from the MIG.

78The applicant disagreed with the respondent's characterization of Dr. McCutcheon's findings and noted that psychological complaints and conditions of the applicant were sufficient to remove him from the MIG, as seen in 16-004622 v Aviva Insurance Canada⁴⁸.

79The applicant also argued that Dr. McCutcheon's Beck Depression Inventory ('BDI-II') and Beck Anxiety Inventory ('BAI') scores, which were in the mild ranges, should have removed the applicant from the MIG, as the severity of the applicant's psychological complaints is not relevant.

80Furthermore, the applicant took issue with Dr. McCutcheon's assessment taking only one and a half hours and occurring almost a year and a half post-accident, arguing this was unfair to the applicant.

Analysis

81After considering the evidence and submissions of the parties, based on the balance of probabilities, I find that the applicant has not met his evidentiary onus of showing that he suffers from a psychological injury as a result of the accident.

82Though I did review the OCF-18s relied upon by the applicant, I found that this evidence was not persuasive in showing that the applicant's anxiety and stress amounted to a psychological injury.

83I do agree that the OCF-18s capture potential psychological symptoms; however, without more continuous, contemporaneous or corroborating complaints from the applicant, I was less persuaded by the applicant's argument.

84Furthermore, I was not presented with any medical evidence to refute the findings of Dr. McCutcheon that the applicant did not suffer a psychological injury.

85I disagreed with the applicant's argument that the doctor's BDI-II and BAI scores alone warrant removal from the MIG. As the applicant has not established the nexus between mild psychometry scores and removal from the MIG, I rejected this argument.

86In terms of the applicant's arguments with regards to 16-004622 v Aviva Insurance Canada⁴⁹, when reviewing this decision, I noted that the adjudicator was addressing a matter where the applicant had been removed from the MIG, and the Tribunal needed to determine if a treatment plan was reasonable and necessary. As the subject matter before the Tribunal addresses an applicant who has yet to be removed from the MIG, and thereby, subject to a different legal test than that of 16-004622 v Aviva Insurance Canada⁵⁰, I found this case to be unpersuasive.

Section 38(11) of the Schedule

87The applicant also submitted that the treatment plan for $2,400.00 for an orthopedic assessment was never denied properly by the respondent and warrants full payment for such and removal of the applicant from the MIG based on section 38(11) of the Schedule.

88The applicant relied on the OCF-18 of Dr. Ogilvie-Harris⁵¹, which requested funding for an orthopaedic assessment, file review, report writing and completing of the OCF-18. The goals of this OCF-18 are to reduce pain, increase strength, increase range of motion, return to activities of normal life, identify impairments and help achieve maximum recovery.

89The applicant argued that the respondent failed to provide him a denial letter for this OCF-18, nor did the respondent choose to conduct an insurer's examination. The applicant argued that the only form of denial for this treatment was on the Health Claims for Auto Insurance ('HCAI') system and did not receive a physical or electronic copy of the denial.

90The applicant also noted that the respondent did proceed to assess the applicant via an in-person general practitioner assessment⁵², an in-person psychological assessment⁵³, followed by a paper review by a general practitioner⁵⁴, however, none of these assessments addressed the disputed OCF-18.

91The applicant also submitted that despite the respondent's denial, the applicant incurred this assessment without assistance⁵⁵ due to the severe pain he lives with.

92The respondent disagreed with the applicant's position and submitted that it had provided the applicant with a valid denial.

93The respondent relied on a letter between the respondent and the applicant, dated May 21, 2020⁵⁶. This document, authored by Sean Banghart, states that the disputed OCF-18 was denied on the basis of the applicant's injuries falling within the MIG.

94The respondent submitted that this letter was sent on May 21, 2020, or six business days after receiving the disputed OCF-18 on May 12, 2020, and therefore, complied with sections 38(8) of the Schedule. As such, the respondent requested that the Tribunal not consider removing the applicant from the MIG or approving the OCF-18 on this basis.

95After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the respondent did comply with section 38(8) of the Schedule, and therefore, is not subject to section 38(11) of the Schedule.

96Since the applicant raised the issue of section 38(8) of the Schedule, he carries the onus of showing that the respondent did not comply. Though I appreciated the applicant's submissions, he was unable to substantiate his position via direct evidence.

97The respondent was able to provide evidence of a communication between the applicant and respondent via the letter between the parties; as the applicant failed to address this in his reply beyond a simple refutation, I find that the applicant has not proven that the denial in question was never sent.

98Therefore, after considering the totality of the evidence related to the notice, I find that the respondent provided a valid denial.

INTEREST

99As the applicant's injuries have been found to be within the MIG, and no treatment plans are outstanding, no interest or award shall be ordered.

CONCLUSION and order

100The applicant's injuries are found to be within the MIG.

101The applicant is not entitled to the disputed treatment plans.

102The applicant is not entitled to interest or an award.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635.
3. 3Ibid, at para.24.
4. 4Of Dr. Jang's clinical notes and records of September 25, 2019.
5. 5On October 3, 2019.
6. 6Ibid.
7. 7Based on Dr. Jang's clinical notes and records and the Lawrence Victoria Park X-Ray and Ultrasound dated September 30, 2019.
8. 8Based on cervical spine radiograph imaging dated November 6, 2019.
9. 9Based on a letter of Dr. Shauna Drover, Diagnostic Radiologist, dated November 6, 2019.
10. 10Based on the clinical notes and records of Dr. Jang from September 25, 2019, to July 14, 2020
11. 11Based on Dr. Jang's referred to Dr. Kachoocie dated July 14, 2020.
12. 12Based on Dr. Kachoocie's letter to Dr. Jang dated December 12, 2019.
13. 13Dated February 6, 2020
14. 14Based on Dr. Kachoocie's letter dated August 23, 2020.
15. 15Based on Dr. Kachoocie's letter dated June 23, 2020.
16. 1617-005000 v RBC Insurance Company, 2018 CanLII 83511 (ON LAT) at paras. 28 and 29.
17. 17Of Dr. Jang's clinical notes and records of September 25, 2019.
18. 18Of Dr. Jang's clinical notes and records of September 25, 2019.
19. 19Conducted on March 9, 2021.
20. 20General Practitioner Assessment of Dr. Stefanac dated March 9, 2021.
21. 21Ibid.
22. 22General Practitioner Addendum Report of Dr. Stefanac dated March 9, 2021.
23. 2318-003544 v Aviva Insurance Canada, 2019 CanLII 76839 (ON LAT).
24. 24Ibid.
25. 2517-005000 v RBC Insurance Company, 2018 CanLII 83511 (ON LAT) at paras. 28 and 29.
26. 26Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, "Impairments that do not come within this Guideline".
27. 27Dated June 2, 2020.
28. 28Ibid.
29. 29Based on Dr. Kachoocie's letter to Dr. Jang dated December 12, 2019.
30. 30Conducted on March 9, 2021.
31. 31Based on the report of Dr. Ogilvie-Harris dated June 2, 2020.
32. 32Based on Dr. Ogilvie-Harris's curriculum vitae, included in the report of Dr. Ogilvie-Harris dated June 2, 2020.
33. 33A. A. vs. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT) at para. 16.
34. 34Based on the applicant's comments to Dr. Ogilvie-Harris during the section 25 orthopedic assessment, dated June 2, 2020.
35. 35Based on the Case Conference Report and Order dated December 31, 2020.
36. 36Based on the applicant comments during the Section 44 General Practitioner Assessment of Dr. Stefanac, dated March 9, 2021.
37. 37Based on the applicant's comment during the section 44 Psychological Assessment of Dr. McCutcheon dated March 9, 2021.
38. 38Of Dr. Joy Simon, chiropractor, dated September 23, 2019.
39. 39Based on an email from Maria Cobena to Nicole Fernandes dated May 3, 2021.
40. 40From Shoppers Drug Mart – 1285 York Mills Road, dated November 27, 2020.
41. 41Based on Dr. Kachoocie's letter to Dr. Jang dated December 12, 2019.
42. 42Based on Dr. Ogilvie-Harris' section 25 orthopedic assessment, dated June 2, 2020.
43. 43A. A. vs. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT) at para. 16.
44. 44In the amount of $2,4600.00, dated May 12, 2020.
45. 45Based on the OCF-18 of Dr. Yee dated September 22, 2020.
46. 46Section 44 Psychological Assessment of Dr. McCutcheon dated March 9, 2021.
47. 47Namely the applicant's Pain Patient Profile ('P3'), Beck Anxiety Inventory ('BAI') and Beck Depression Inventory II ("BDI-II').
48. 4816-004622 v Aviva Insurance Canada, 2018 CanLII 39477 at para. 22.
49. 4916-004622 v Aviva Insurance Canada, 2018 CanLII 39477 at para. 22.
50. 50Ibid.
51. 51Dated May 12, 2020.
52. 52Section 44 General Practitioner Assessment of Dr. Stefanac, dated March 9, 2021.
53. 53Section 44 Psychological Assessment of Dr. McCutcheon dated March 9, 2021.
54. 54Section 44 General Practitioner Addendum Report of Dr. Stefanac dated March 9, 2021
55. 55Based on the applicant's Invoice for Orthopedic Report dated May 25, 2020.
56. 56Correspondence from RSA to the Applicant dated May 21, 2020.